Wilson v. Southern Cal. Edison Co.

Filed 3/26/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
SIMONA WILSON, B275845
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. YC065545)
v.
SOUTHERN CALIFORNIA
EDISON COMPANY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Ross M. Klein, Judge. Judgment reversed and matter
remanded; cross-appeal dismissed as moot.
Grassini, Wrinkle & Johnson, Roland Wrinkle and Lars Johnson
for Plaintiff and Appellant.
Southern California Edison, Carla M. Blanc, Leon Bass, Jr.;
Limnexus, Arnold Barba, Sandra Sakamoto; Munger, Tolles & Olson,
Stephen M. Kristovich; Greines, Martin, Stein & Richland, Jonathan H.
Eisenman and Robin Meadow for Defendant and Appellant.
This case is before us for the second time. It involves a
homeowner–plaintiff Simona Wilson–who bought a house next door to
an electrical substation (the Topaz substation) operated by defendant
Southern California Edison Company (Edison). After remodeling her
master bathroom four years after she moved into the house, Wilson felt
low levels of electricity in her remodeled shower when she adjusted the
showerhead. This flow of electricity was due to neutral-to-earth voltage
(NEV), also referred to as stray voltage, on her property. Because NEV
is unavoidable in a grounded electrical system, such as the one operated
by Edison, Edison was unable to completely eliminate it from Wilson’s
property as Wilson insisted, although it recommended ways to reduce
the voltage in her shower to below-perceptible levels. Fearing for her
safety and the safety of her three children, Wilson moved out of the
house into a rental property. Because she could not afford to pay both
the rent on that property and the mortgage on her house, the house
went into foreclosure, ruining her credit.
Wilson sued Edison for negligence, intentional infliction of
emotional distress (IIED), and nuisance, and sought punitive damages.
In the first trial, the jury found in favor of Wilson on all three claims,
awarding $550,000 on the negligence and IIED claims, $500,000 on the
nuisance claim, and $3 million in punitive damages. Edison appealed.
In a published decision (Wilson v. Southern California Edison Co.
(2015) 234 Cal. App. 4th 123 (Wilson I), we found there was insufficient
evidence to support the negligence and IIED claims or the punitive
damages award, and found that the jury relied upon irrelevant evidence
when determining the nuisance claim. (Id. at p. 130.) We reversed the
2
judgment, ordered judgment entered in favor of Edison on the
negligence and IIED claims, and remanded to the trial court for a
retrial on the nuisance claim. (Ibid.)
On retrial the trial court, over Edison’s objections, allowed Wilson
to present extensive evidence of incidents related to stray voltage at the
house that occurred before Wilson bought it and at other nearby
properties, and Edison’s conduct with regard to those incidents. The
jury again found in favor of Wilson, and awarded her $1.2 million in
damages on her nuisance claim. Wilson moved for her attorney fees
under Code of Civil Procedure1 1021.5, on the ground that her action
resulted in a published decision (Wilson I) that addressed an important
right affecting the public interest, i.e., whether the California Public
Utilities Commission (the PUC) had exclusive jurisdiction over claims
regarding stray voltage. The trial court denied the motion, finding that
Wilson’s financial stake in the litigation was a sufficient incentive to
pursue the litigation.
Edison appeals from the judgment in favor of Wilson, and Wilson
cross-appeals from the denial of her attorney fee motion.
Edison contends in its appeal that: (1) it is entitled to judgment
because, as a matter of law, the harm Wilson suffered cannot outweigh
the public benefit of providing electricity; (2) it is entitled to a new trial
because the trial court improperly allowed Wilson to present
inflammatory irrelevant evidence related to stray voltage incidents
1 Further undesignated statutory references are to the Code of Civil
Procedure.
3
involving prior owners or tenants of the property or other nearby
properties; (3) it is entitled to a new trial on damages (if not a retrial on
both liability and damages) because the jury improperly included in its
award damages to which Wilson was not entitled, such as attorney fees;
and (4) it is entitled to a new trial on damages (if not a retrial on both
liability and damages) because the $1.2 million award is excessive.
In her cross-appeal, Wilson contends the trial court erred in
denying her request for attorney fees under section 1021.5 because the
legal right that was enforced in Wilson I was important and protects the
public interest, the published opinion conferred a significant benefit on
the general public, and the cost to pursue a case against a large entity
such as Edison transcended her personal interest.
We find that based upon the evidence presented at trial, we
cannot conclude as a matter of law that the harm Wilson suffered does
not outweigh the public benefit of Edison’s conduct. However, we find
that the trial court erred in admitting irrelevant evidence related to
stray voltage incidents involving prior owners or tenants of the house or
other properties, and that the admission of that evidence was
prejudicial to Edison. Accordingly, we reverse the judgment and
remand to the trial court for retrial of the nuisance claim. In light of
our reversal of the judgment, we dismiss as moot Wilson’s cross-appeal.
BACKGROUND
A. Fundamentals of Electrical Distribution Systems and Electricity
As was the case in Wilson I, “[a]nalysis of the facts and issues in
this case requires a basic understanding of electricity and electrical
4
distribution systems.” (Wilson I, supra, 234 Cal.App.4th at p. 130.) We
therefore include here our discussion of the fundamentals of electrical
distribution systems and electricity from our earlier opinion:
“Electricity is produced at a generating plant. Because it is not
economical to send electricity over long distances at low voltages, the
electricity produced at the plant is stepped up through transformers to
a very high voltage before it is sent out over transmission lines. A
substation, such as Edison’s Topaz substation at issue in this case,
receives the high voltage electricity from the generating plant and steps
it down through transformers to 4,000 volts. It then sends the
electricity over distribution lines out to the neighborhood power poles,
where an additional transformer steps down the voltage to 240/120
volts before delivering the electricity to homes or businesses.
“In order for electricity to flow, there must be a complete circuit.
In other words, when electricity is sent out from a transformer to a
‘load’ (i.e., something that is using electricity, such as a light or
appliance), it must have a return path. Typically, electricity is sent
over one conductor (wire), called the ‘hot,’ and returns on another
conductor called the “neutral.” The flow of electricity is referred to as
‘current’ and is measured in amperes (or amps); voltage is the pressure
that drives the current. The amount of current depends in part upon
the amount of resistance in the circuit; e.g., a 100–watt lightbulb has
5
less resistance than a 60–watt lightbulb, so there will be a larger
current flowing through it (and therefore the bulb burns brighter).[ 2]
“For safety reasons, electrical systems usually are grounded. That
means that at various points in the system, including at the substation,
a connection is made from the neutral to the ground, i.e., the earth.
Because the earth is conductive, it can provide a return path for the
flow of electricity. Therefore, if, for example, an energized wire fell to
the ground from the distribution lines, the earth would provide a path
for the current to return to the substation, where a protective device
would break the circuit. But the conductivity of the earth also can
present a danger to someone who touches a source of electricity. If that
person is in physical contact with the earth, electricity will flow from
the electrical source, through his or her body, to the earth and on to the
distribution system or substation, thus completing the circuit. The
amount of current will depend on the resistance of the person’s body,
the amount of contact area, and the amount of voltage present.
“In a grounded electrical system, there will always be some
current flowing back to the substation through the earth. This is
referred to as neutral-to-earth voltage, or ‘NEV,’ and it cannot be
entirely eliminated. NEV is one cause of ‘stray voltage,’ which is
voltage of 10 volts or less appearing on objects that are not part of an
electrical system, that can be simultaneously contacted by members of
2 “The amount of current also depends on the amount of voltage. The
amount of current is calculated using Ohm’s Law: current (in amps) equals
voltage (volts) divided by resistance (ohms).” (Wilson I, supra, 234
Cal.App.4th at p. 131, fn. 1.)
6
the general public.[ 3] Metal objects, such as water pipes or gas lines,
that are buried in or connected to the earth will conduct electricity, so if
a person in a home touched a water pipe that was energized due to NEV
while also touching the earth or another conductor at a different
voltage, a circuit would be completed and current would run through
that person’s body. This ‘touch potential’ can be eliminated by replacing
metal pipes with plastic pipes or installing isolators (such as a short
section of plastic pipe) to stop the flow of electricity onto metal fixtures,
or by connecting (or ‘bonding’) the two conductors to equalize the
voltage between the two.
“The physiological effects of current flowing through a person’s
body depends upon the amount of the current. According to a leading
reference, a woman who encounters a current of 0.3 milliamps (mA)
would not feel anything. At 0.7mA, she would feel a slight tingling; that
typically is the perception threshold. At 1.2mA, she would feel a shock,
but it would not be painful and muscular control would not be lost. She
would feel a painful shock at 6mA, but she would still have muscular
control. The let-go threshold is at 10.5mA, and at 15mA, she would feel
a severe shock, have muscular contractions, and her breathing could be
difficult.[4]” (Wilson I, supra, 234 Cal.App.4th at pp. 130-132.)
3 “Stray voltage also can be caused by wiring faults (i.e., a short circuit in
which an energized conductor makes contact with a grounded surface) or
corrosion of a neutral conductor.” (Wilson I, supra, 234 Cal.App.4th at p. 131,
fn. 2.)
4 “These current figures are for 60-Hz, alternating current, like the
electricity supplied to homes. Another leading reference chart, which takes
into account the amount of time of the contact, shows that perception is
7
B. Events Leading Up to Lawsuit
Wilson and her then-husband Ryan bought the house at issue–
located at 904 Knob Hill Drive in Redondo Beach–in March 2007, when
she was pregnant with her second child.5 The house is adjacent to
Edison’s Topaz electrical substation. Before buying the house, Wilson
asked the prior owner and his broker about the substation; based on
that conversation, she was satisfied that there were no safety hazards
associated with the substation affecting the house.
Wilson first became aware there was a voltage issue affecting her
property on Friday, August 22, 2008, when Ryan came home and found
a tag on their door saying that the gas had been shut off due to
electricity at the gas meter, and instructing them to contact Edison.
Because they did not get the notice until Friday night, they had to wait
until Monday to contact Edison, so they had no gas for the weekend.
On Monday, Ryan contacted Edison, and Edison sent someone to the
house. That person attached a wire to the gas meter and ran the wire
to the substation. Wilson was told that the purpose of the wire was to
allow Edison to monitor the voltage on the gas meter in order to satisfy
the gas company that it was safe to turn the gas back on.
possible up to 0.5mA, and that current above 10mA likely would produce
involuntary muscle contractions, but there usually would not be any harmful
physiological effects.” (Wilson I, supra, 234 Cal.App.4th at p. 132, fn. 3.)
5 Ryan moved out of the house in late December 2008; he and Wilson
ultimately divorced.
8
In April 2010, Wilson got another notice from the gas company
that there was electricity at the gas meter. This time, however, the gas
company did not turn off the gas. Wilson did not contact Edison or the
gas company, since Edison was still monitoring the gas line and the gas
had not been turned off. Her reaction to the notice “[r]anged from
annoyance to fear, irritation, frustration.”
In February 2011, Wilson remodeled her master bathroom. Her
father, a tile and stone contractor, did the work. He removed the
bathtub, which was sitting on a wooden pedestal, and changed the
drain to convert it to a tiled stall shower on a concrete slab. The drain
was connected to a cast iron pipe that ran through the ground. He also
added an outdoor shower. The remodel took several weeks, and was
completed in March 2011.
After the remodel was completed, Wilson noticed that every time
she adjusted the showerhead in the master bathroom shower she would
“get this tingling in [her] arm.” She is a swimmer, and thought she
might have a pinched nerve. On April 19, 2011, she was taking a
shower and told her boyfriend, Jason Stelle, that she thought she had a
pinched nerve, so he said he would adjust the showerhead for her.6
When he did so, he “felt basically a tingling sensation starting in [his]
fingers and starting to emanate down [his] arm.”
Wilson called her father and told him about what they felt. Her
father was concerned that one of his staples had nicked a wire during
6 Stelle was engaged to Wilson; he lived at the house with Wilson from
September 2009 until September 2011.
9
the construction, and wanted his electrician to do some testing.
Wilson’s father brought his electrician to the house the next day. The
electrician did some testing, and confirmed there was voltage in the
shower; he also found voltage at the gas meter, water meter, two hose
bibs, and the waste and overflow pipes for the bathtub. He found that
even after he turned off all power to the house there was voltage in
those locations. He recommended that they call Edison.
Stelle, who worked from home and therefore was able to meet
with service people at the house, called Edison that day (April 20) or
the next day. 7 No one from Edison came to the house either day. On
April 22, which was a Friday, Wilson called Edison and demanded that
someone tell her what was going on. That day, Edison technicians came
to the house on two separate occasions and took readings. Stelle spoke
with the technicians, but they did not provide any explanation for what
was happening, nor did they provide a solution to the problem.
Wilson called Edison several times the following week, until
April 27, when Matt Norwalk, a technical specialist in Edison’s Power
Quality Department went to the house and spoke to Stelle. Norwalk
took voltage measurements in the master bathroom shower and gas
meter, both with a resistor and without one. 8 He found 2.4 volts
7 Wilson testified that Stelle “called Edison immediately.” Stelle,
however, testified that he called the day after Wilson’s father and the
electrician came to the house.
8 A resistor is used to simulate the internal body resistance of a person,
to determine how much, if any, electricity would flow through a person who
came in contact with the item while in contact with the ground.
10
without the resistor in the shower (from the showerhead pipe to the
drain) and 2.2 volts with it, and 1.5 volts without the resistor at the gas
meter and 0.5 volts with it. He explained to Stelle that the voltage was
stray voltage from the normal delivery of electrical power. He noted
there was a history of stray voltage on Wilson’s property, although he
did not provide any specifics regarding the types of incidents that had
occurred. He did, however, tell Stelle that Edison had done a
simulation study for a previous owner of the property that explained the
stray voltage phenomenon. According to Stelle, Norwalk told him that
the stray voltage was within Edison’s standards, and there were no
plans to change it. Stelle asked Norwalk to come back to the house
when Wilson could be there so he could explain it all to her. A meeting
was arranged for May 6.
On May 6, 2011, Norwalk, along with two other Edison employees,
met with Wilson, Wilson’s father, their electrician, and Stelle (although
Stelle was caring for the children for most of the meeting). The meeting
lasted for about two hours. The group walked around the house,
starting with the master bathroom, and then going to the gas line, since
those were the two main concerns. Norwalk took measurements at the
shower, and got the same readings he had gotten on April 27, i.e., 2.4
volts without the resistor and 2.2 volts with the resistor. They then
went to the gas meter, where Norwalk measured 1.4 volts without the
resistor and 0.5 volts with the resistor.9
9 Norwalk testified that it typically takes around one volt in order to
push enough current through a human body that electrical current can be
perceived.
11
In addition to taking the measurements, Norwalk showed Wilson
a graph of the readings on her gas line, which Edison had been
monitoring since 2008. Wilson noted that there was a “huge chunk of
data missing.” Norwalk explained that the memory card on the
machine that was monitoring the voltage had run out, and Edison did
not catch it from December 2010 until April 2011. But he showed
Wilson that the measurements that were taken right before the memory
card ran out and right after it was replaced were nearly identical.
The parties dispute what happened next.
According to Wilson, Norwalk told her that the conditions at her
house were within Edison’s safety standards. Norwalk recommended
that she shower at off-peak hours, when people were not using as much
electricity, so the load on the substation was not as great. She testified
that neither Norwalk nor either of the other Edison representatives
offered any way to fix the stray voltage problem, although she admitted
they gave recommendations about ways to make the master bathroom
shower less conductive, including possibly bonding the showerhead to
the drain in the shower to make it so there is no shock potential.
Wilson did not find those recommendations helpful because she believed
they were temporary measures; she wanted a permanent solution that
would completely eliminate the stray voltage on her property.
According to Norwalk, Wilson asked how Edison was going to get
rid of the voltage at the gas meter and master bathroom shower, and he
explained that, because it was stray voltage from the normal operation
12
and delivery of electrical power from the substation, the only way to
resolve it would be to either put isolators within the plumbing system or
to bond the sewer line to the water line. Wilson’s father asked him how
that would be done, and Norwalk explained that it might require
removing the tile floor of the shower (for bonding) or cutting holes in the
wall (for isolators). Norwalk told Wilson that she could use the
contractor of her choice to do the work and submit the bill to Edison for
reimbursement.10 Wilson said that she did not want any more
construction in her house because her children had already been
exposed to construction dust and she did not want them exposed to
more; she wanted Edison to fix the problem on its side, without doing
any work on her house.
A few days after the May 6 meeting, Wilson had a telephone
conversation with Rick McCollum, an investigations manager for
Edison. What was said during that conversation also is in dispute.
According to McCollum, he told Wilson that Norwalk and other
technicians had offered some solutions to the stray voltage at her house,
and that Edison would be happy to pay to implement those solutions,
either by having Wilson use her own plumber and be reimbursed by
Edison or by having Edison hire a plumber to do the work. Wilson,
however, said that she did not want people traipsing through her house.
10 Both Stelle and Wilson’s father testified that they did not hear anyone
from Edison offer to pay for any kind of remedy to deal with the voltage on
the shower or gas line.
13
At one point, he asked her what she wanted from Edison, and she said
she wanted Edison to buy her house.
According to Wilson, McCollum only suggested bonding as a way
to minimize the stray voltage in the shower, and did not say that
Edison would pay for it. She did not tell McCollum that she wanted
Edison to buy her house.
Wilson continued to live in the house with Stelle and her
children. 11 As a precaution to protect herself and her children from
electricity, she covered everything that was metal (like faucets) with
duct tape and put rubber mats down almost everywhere. She stopped
using the master bathroom shower. She and the older children
showered outside, and she showered more at the gym. 12 In June or July
2011, she felt a shock while using the outside shower, and stopped
using it after that.
C. Filing of the Lawsuit and Subsequent Events
In September 2011, the same day she filed the present lawsuit,
Wilson moved out of the house. She moved to a rental property about
three miles away. In October, shortly after she moved out, she received
a letter from Edison, offering to fix the stray voltage issue by putting in
plastic plumbing pipes. She rejected the offer because she had signed a
11 In 2011, Wilson had three children–two with her husband and one with
Stelle–who ranged in age from one to six years old.
12 We note there is a second bathroom in the home, with a
bathtub/shower. Neither Wilson nor any of her children ever felt electricity
while using the bathtub/shower.
14
one-year lease on the rental property, and because she “felt it was a
band-aid and not a solution”; she wanted the stray voltage completely
eliminated, rather than simply reduced to below perception levels.
At the time Wilson moved out of the house, she was current with
the mortgage payments, but as a result of having to pay to live at the
rental property, her house went into foreclosure. The foreclosure
dropped her credit rating by over 350 points, and all of her credit cards
dropped her down to bare-minimum levels.
In February 2013, Edison found out that Wilson’s house had been
sold. Norwalk met with the new owners’ broker and told him about the
tingling sensation felt by the previous owner. He asked to take voltage
measurements throughout the property, both inside and outside. He
found perceptible levels of voltage in only two places: the master
bedroom shower and the outside shower. 13 He told the broker that
Edison could bring in a plumber to install sections of polyethylene
piping in the copper water lines or to use a dielectric union (another
kind of isolator) to eliminate the voltage at those places. The broker
agreed.
Norwalk discussed the options with the plumber, and they decided
to try the dielectric unions first, to see if that would eliminate the
voltage on the master bathroom shower and the gas line. After they
were installed, Norwalk measured the voltage in the shower and at the
gas line. At the gas line he measured zero volts with and without a
13 Although the gas meter had some voltage, it was below a perceptible
level.
15
resistor, but voltage remained at the shower. Edison brought the
plumber back for another day to install sections of polyethylene piping
in both the master bathroom shower and the outside shower. After that
work was done, Norwalk measured zero volts with the resistor at all
locations. Installation of all the isolators took two or three days, and
cost just over $5,000.
In addition to installing the isolators, Edison tested other methods
that might reduce the stray voltage at the property. In February 2013,
Edison installed a dedicated transformer for the house, to see if
isolating a transformer to that location would lower the stray voltage.
It found that although the dedicated transformer lowered the stray
voltage, it did not eliminate it entirely, and the fluctuation of load on
the substation would bring the voltage up to a perceptible level.14
In May 2013, Norwalk was contacted by the broker for the
property, who told him there was a prospective buyer, John Seamons,
who wanted to meet with him to get an explanation regarding the stray
voltage. Norwalk met with Seamons at the house. Norwalk told him
about the voltage measurements, the history of the house (including
14 The voltage level at the property already had been reduced when, in
October 2012, Edison performed additional grounding at the substation. This
work was done after a car accident caused a high voltage line to fall into one
of the supply lines coming from the substation, which elevated the voltage on
the grounding grid. Due to concerns about the safety of Edison personnel at
the substation, a study of the grounding grid was conducted, and ground
wells were installed to enhance the ground grid. After the work was
completed, Norwalk discovered that the stray voltage on Wilson’s property
was reduced by approximately 40 percent, although it did not reduce the
voltage to below perception levels.
16
that the prior owner had felt a tingling sensation in the shower), and
explained the work Edison had done to install isolators. He also told
Seamons that if he decided to change any of the plumbing in the house,
he (Norwalk) would make himself available to discuss the best way and
best work methods to continue the isolation at those locations.
Seamons lived in the house with his wife and children from July
2013 to May 2015. During that time, neither he nor any member of his
family experienced stray voltage anywhere on the property. They
moved out of the house for work reasons.
When Seamons was selling the house, he contacted Norwalk and
asked him to come to the house to recheck the voltage measurements.
Norwalk did so, and detected some voltage–slightly above one volt–on a
spigot on the outside of the house. Edison brought in a plumber to
install a section of polyethylene piping into the supply to the spigot,
which reduced the voltage to zero. Norwalk also found zero volts at the
master bathroom shower, the outside shower, and the gas meter. He
provided those readings in writing to Seamons so he could provide them
to the new owner. Since that time, Edison has not received any
complaints of stray voltage regarding the property.
D. First Trial and Appeal
As we described in more detail in Wilson I, supra, 234 Cal. App. 4th
123, Wilson’s claims for negligence, IIED, and nuisance were tried
before a jury. In that trial, a significant amount of evidence was
presented related to the history of stray voltage at 904 Knob Hill Drive
and the surrounding neighborhood, much of which we set forth in our
17
statement of facts. 15 (Id. at pp. 132-135.) Wilson also presented a
significant amount of evidence of various physical injuries she suffered,
although she did not present evidence showing that these injuries were
caused by her exposure to stray voltage. (Id. at pp. 139, 158.)
The jury found in favor of Wilson on all three of her claims, and
awarded her $550,000 on her IIED and negligence claims, $500,000 on
her nuisance claim, plus $3 million in punitive damages. (Wilson I,
supra, 234 Cal.App. at p. 140.) Edison appealed, raising several
contentions, including that Wilson’s claims fell under the exclusive
jurisdiction of the PUC. In our published decision, we concluded that
the PUC did not have exclusive jurisdiction over the claims, but found
there was insufficient evidence to support Wilson’s IIED and negligence
claims, and that the punitive damages award was unjustified. (Id. at p.
140.) We determined, however, that “[w]e cannot conclude there was
insufficient evidence to support Wilson’s nuisance claim, since it
requires the jury to balance the gravity of the harm from the
interference with Wilson’s use and enjoyment of her property against
the social utility of Edison’s conduct.” (Id. at p.151.) We nevertheless
found that the nuisance claim could not stand because “the jury
considered evidence of Wilson’s physical injuries (which should not have
15 We note that Wilson, in her respondent’s brief/cross-appellant’s opening
brief, recites this history “word-for-word and unadorned” from our opinion as
part of her statement of facts. This is inappropriate. Our statement of facts
in Wilson I was based upon the evidence presented at the first trial (which
included other claims for which the historical evidence was relevant). The
only facts relevant to this appeal are the facts that were presented to the jury
at the second trial.
18
been considered because there was no evidence those injuries were
caused by her exposure to stray voltage) in balancing the harm against
the social utility and finding in favor of Wilson.” (Id. at pp. 151-152.)
Therefore, we remanded the matter for retrial on the nuisance claim.
(Id. at p. 160.) In doing so, we noted an issue regarding the jury
instruction for that claim (CACI No. 2021), and directed the trial court
to give an additional instruction to supplement CACI No. 2021. (Id. at
pp. 160, 163-164.)
E. Retrial
On remand, the case was assigned to a different judge. The trial
court entered judgment in favor of Edison on the negligence and IIED
claims, ordered Wilson’s claim for punitive damages stricken, and set
the matter for trial on the nuisance claim.
Before trial, Edison filed several motions in limine, including
motions to exclude all evidence and argument relating to (1) the alleged
existence of stray voltage at any property other than Wilson’s, or at
Wilson’s property before she owned it, or (2) Edison’s prior ownership of
Wilson’s property (or other nearby houses) or its putting those houses
on the market in the 1990s. The trial court granted those motions to
the extent they sought exclusion of evidence related to other properties
or to Edison putting Wilson’s property on the market in the 1990s, but
denied them to the extent they sought to exclude evidence related to the
history of the property and its previous owners or tenants. In making
its ruling, the court stated: “we need some context as to what Edison
knew, when they knew it, what responses they took, and then how that
19
dovetails or compares with the action of Edison in the particular period
involving Ms. Wilson.”
In light of this ruling, Wilson presented a significant amount of
evidence related to stray voltage issues encountered by previous owners
or tenants of Wilson’s property, as well as some evidence related to
stray voltage issues throughout the neighborhood. This evidence
included (1) testimony from a former tenant of the house about shocks
she and her young children experienced when they lived there in 1995
to 1997; (2) testimony from a former longtime employee of the Southern
California Gas Company about the gas company’s issues with stray
voltage both at Wilson’s house and in the neighborhood; (3) testimony
from a former employee in Edison’s real estate department who was
involved in preparing the property for sale between 1997 and 1999, who
was subject to extensive questioning about his experience with stray
voltage at the property during that time as well as the prior history of
people experiencing stray voltage there; (4) testimony from the former
facility coordinator for Edison, who was questioned about reports he
received regarding former tenants getting shocked in the house when
Edison owned the property; and (5) Norwalk’s testimony on cross-
examination regarding reports by prior owners or tenants of shocks
they received at the property.
Wilson’s attorney emphasized this evidence in his closing
argument, criticizing Edison for failing to fix the problem, and asking
the jury to send a message to Edison: “[T]he question is going to be
whether Edison is going to get away with this. With your verdict, you
can say no. You can say no, Edison, you are not going to get away with
20
telling people over and over and over again that they are safe, that you
fixed it. . . . They [i.e., Edison] don’t care. What your verdict can do is
make them care.”
During deliberations, the jury sent out two questions.
The first question asked for clarification on question No. 8 on the
special verdict form–“Did the seriousness of the harm outweigh the
public benefit of Southern California Edison’s conduct?”–asking, “What
is meant on the part stating public benefit? i.e., is it the street?
Southern California?” After conferring with counsel, the court sent a
written response to the jury stating, “Without a specific geographical
location, the focus is on the public benefit of Edison’s conduct in
supplying electricity to its customers.”
The second question asked, “In this case, what is the definition of
harm? (i.e., mental? physical? financial?)” In response, the court
referred the jury to the first two subdivisions of CACI No. 2022.16
The jury came back with a special verdict in favor of Wilson,
awarding her $1.2 million in damages. The jurors were polled. On four
16 CACI No. 2022 was added by the Judicial Council in response to Wilson
I, supra, 234 Cal.App.4th at pages 163-164. As read to the jury, it provided
in relevant part: “In determining whether the seriousness of the harm to
Simona Wilson outweighs the public benefit of Southern California Edison’s
conduct, you should consider a number of factors. To determine the
seriousness of the harm Simona Wilson suffered, you should consider the
following: [(a)] The extent of the harm, meaning how much the condition
Southern California Edison caused interfered with Simona Wilson’s use or
enjoyment of her property and how long that interference lasted; [(b)] The
character of the harm, that is, whether the harm involved a loss from the
destruction or impairment of physical things that Simona Wilson was using[,]
or her personal discomfort or annoyance.” (See CACI No. 2022.)
21
critical questions–(1) did Edison create a condition that was an
obstruction to the free use of property so as to interfere with the
comfortable enjoyment of life or property; (2) was this condition of such
duration, nature, or amount as to have unreasonably interfered with
Wilson’s use or enjoyment of her land; (3) was Edison’s conduct a
substantial factor in causing Wilson harm; and (4) did the seriousness
of the harm outweigh the public benefit of Edison’s conduct–the jury
was split nine to three.
Judgment was entered in favor of Wilson and against Edison in
the amount of $1.2 million. Edison filed motions for a new trial and for
judgment notwithstanding the verdict (jnov), and Wilson filed a motion
for attorney fees.
In its new trial motion, Edison submitted the declarations of two
jurors (one of whom voted in favor of Wilson) stating that the jury
discussed and considered compensating Wilson for the value of her
house, the damage to her credit, and her attorney fees, and agreed to a
$1.2 million verdict based on these considerations. Based upon those
declarations, Edison argued there was jury misconduct entitling it to a
new trial. Edison also argued it was entitled to a new trial on the
grounds that (1) the damages award was excessive; (2) there was
insufficient evidence to support the damage award; (3) there was
insufficient evidence to support a finding of liability; and (4) the court
committed prejudicial error by admitting evidence related to the history
of Wilson’s property before she owned it. In its motion for jnov, Edison
argued there was no substantial evidence to support the verdict because
the evidence does not support that Wilson suffered “substantial actual
22
damage” or that the gravity of any harm she suffered outweighs the
social utility of Edison’s distribution of electricity.
In her attorney fee motion, Wilson argued she was entitled to fees
under section 1021.5 because she ultimately prevailed on an issue of
broad public importance, i.e., whether the PUC had exclusive
jurisdiction over claims related to stray voltage, and the cost to Wilson
of litigating against Edison was disproportionate to her personal stake
in the outcome of her case. She requested an award of over $3 million
(a lodestar of just over $1 million, with a multiplier of three). This
figure included her fees from both the first and the second trials, as well
as the prior appeal.
The trial court denied all three motions. Edison timely filed a
notice of appeal from the judgment and denial of its posttrial motions,
and Wilson timely filed a notice of cross-appeal from the denial of her
attorney fee motion.
DISCUSSION
A. Law Governing Private Nuisance Claims
A private nuisance claim is a claim for “a nontrespassory
interference with the private use and enjoyment of land.” (San Diego
Gas & Electric Co. v. Superior Court (1996) 13 Cal. 4th 893, 937
(Covalt).) As our Supreme Court has explained, it requires proof of
three elements.
First, the plaintiff must prove an “interference with the plaintiff’s
use and enjoyment of that property.” (Covalt, supra, 13 Cal.4th at p.
937.)
23
Second, the plaintiff must prove “that the invasion of the
plaintiff’s interest in the use and enjoyment of the land was substantial,
i.e., that it caused the plaintiff to suffer ‘substantial actual damage.’ . . .
The degree of harm is to be judged by an objective standard, i.e., what
effect would the invasion have on persons of normal health and
sensibilities living in the same community? [Citation.] ‘If normal
persons in that locality would not be substantially annoyed or disturbed
by the situation, then the invasion is not a significant one, even though
the idiosyncracies of the particular plaintiff may make it unendurable
to him.’ [Citation.] This is, of course, a question of fact that turns on
the circumstances of each case.” (Covalt, supra, 13 Cal.4th at p. 938.)
Third, “‘[t]he interference with the protected interest must not
only be substantial, but it must also be unreasonable’ [citation], i.e., it
must be ‘of such a nature, duration or amount as to constitute
unreasonable interference with the use and enjoyment of the land.’
[Citations.] The primary test for determining whether the invasion is
unreasonable is whether the gravity of the harm outweighs the social
utility of the defendant’s conduct, taking a number of factors into
account.[17] [Citation.] Again the standard is objective: the question is
17 Those factors were spelled out in Wilson I, and are incorporated in
CACI No. 2022 as follows:
“To determine the seriousness of the harm [name of plaintiff] suffered,
you should consider the following:
“a. The extent of the harm, meaning how much the condition
[name of defendant] caused interfered with [name of plaintiff]’s use or
enjoyment of [his/her] property, and how long that interference lasted.
24
not whether the particular plaintiff found the invasion unreasonable,
but ‘whether reasonable persons generally, looking at the whole
situation impartially and objectively, would consider it unreasonable.’
[Citation.] And again this is a question of fact: ‘Fundamentally, the
unreasonableness of intentional invasions is a problem of relative
values to be determined by the trier of fact in each case in light of all
the circumstances of that case.’ [Citations.]” (Covalt, supra, 13 Cal.4th
at pp. 938-939.)
“b. The character of the harm, that is, whether the harm
involved a loss from the destruction or impairment of physical things that
[name of plaintiff] was using, or personal discomfort or annoyance.
“c. The value that society places on the type of use or enjoyment
invaded. The greater the social value of the particular type of use or
enjoyment of land that is invaded, the greater is the seriousness of the harm
from the invasion.
“d. The suitability of the type of use or enjoyment invaded to the
nature of the locality. The nature of a locality is based on the primary kind of
activity at that location, such as residential, industrial, or other activity.
“e. The extent of the burden (such as expense and inconvenience)
placed on [name of plaintiff] to avoid the harm.
“To determine the public benefit of [name of defendant]’s conduct, you
should consider:
“a. The value that society places on the primary purpose of the
conduct that caused the interference. The primary purpose of the conduct
means [name of defendant]’s main objective for engaging in the conduct. How
much social value a particular purpose has depends on how much its
achievement generally advances or protects the public good.
“b. The suitability of the conduct that caused the interference to
the nature of the locality. The suitability of the conduct depends upon its
compatibility to the primary activities carried on in the locality.
“c. The practicability or impracticality of preventing or avoiding
the invasion.” (CACI No. 2022; see also Wilson I, supra, 234 Cal.App.4th at
pp. 163-164.)
25
The Supreme Court noted that the latter two elements “flow[]
from the law’s recognition that ‘Life in organized society and especially
in populous communities involves an unavoidable clash of individual
interests. Practically all human activities unless carried on in a
wilderness interfere to some extent with others or involve some risk of
interference, and these interferences range from mere trifling
annoyances to serious harms. It is an obvious truth that each
individual in a community must put up with a certain amount of
annoyance, inconvenience and interference and must take a certain
amount of risk in order that all may get on together. The very existence
of organized society depends upon the principle of “give and take, live
and let live,” and therefore the law of torts does not attempt to impose
liability or shift the loss in every case in which one person’s conduct has
some detrimental effect on another. Liability for damages is imposed in
those cases in which the harm or risk to one is greater than he ought to
be required to bear under the circumstances, at least without
compensation.’ [Citation.]” (Covalt, supra, 13 Cal.4th at pp. 937-938.)
A finding of an actionable nuisance does not require a showing
that the defendant acted unreasonably. As one treatise noted,
“[c]onfusion has resulted from the fact that the intentional interference
with the plaintiff’s use of his property can be unreasonable even when
the defendant’s conduct is reasonable. This is simply because a
reasonable person could conclude that the plaintiff’s loss resulting from
the intentional interference ought to be allocated to the defendant.”
(Prosser & Keeton, Torts (5th ed. 1984) § 88, p. 629.)
26
B. Judgment as a Matter of Law
Edison contends on appeal that it is entitled to judgment because
the tingling sensation Wilson felt, which could have been remedied for
$5,000, cannot constitute a nuisance when weighed against the public
benefit of Edison’s conduct, i.e., providing electricity to the community.
In making this argument, Edison defines the claimed nuisance as “a
slight tingling sensation caused by stray voltage,” and asserts that
“Wilson’s annoyance over the stray voltage was only reasonable–and so
was only actionable–to the extent that the stray voltage was
perceptible.”
Edison’s argument fails at its definition of the claimed nuisance in
this case. As litigated by Wilson, the claimed nuisance–i.e., the
allegedly unreasonable interference–was the presence of stray voltage
on her property, whether perceptible or not. As she repeatedly stated, it
was not sufficient to eliminate the perceptible voltage by bonding the
showerhead to the drain or adding isolators; she wanted the stray
voltage eliminated entirely. Thus, the alleged harm she suffered was
not limited to the tingling sensation she felt in the master bathroom
shower–or the shock she felt in June or July 2011 while using the
outside shower. Based upon the evidence presented at trial, the jury
could also find that Wilson suffered harm caused by the stray voltage
even when it was not perceptible.
For example, Wilson’s expert testified that he went to Wilson’s
house and took voltage measurements, and measured three volts from
the plumbing in the kitchen sink to the wet floor. Thus, even though
Wilson had never perceived electricity at the kitchen sink, the jury
27
could conclude that a reasonable person would be annoyed or disturbed
by the unperceived stray voltage. That this might be characterized as
fear of a future injury does not mean that it cannot be considered an
alleged harm for purposes of a private nuisance claim if the jury
determines that that fear was reasonable. (See McIvor v. Mercer-Fraser
Co. (1946) 76 Cal. App. 2d 247, 254 [“mere apprehension of injury from a
dangerous condition may constitute a nuisance where it interferes with
the comfortable enjoyment of property”].)
Edison’s reliance on Koll-Irvine Center Property Owners Assn. v.
County of Orange (1994) 24 Cal. App. 4th 1036, for the proposition that
fear of a future injury is insufficient to support a nuisance claim is
misplaced. In that case, the plaintiffs–owners of commercial units in an
industrial park located on the border of an airport–alleged that the
location and construction of a jet fuel farm at the airport 100 feet from
their property interfered with the use and enjoyment of their property
because it caused them to fear a catastrophic accident from an aircraft
accident or rupture of the fuel tanks. (Id. at p. 1039.) The appellate
court held that this was insufficient to state a cause of action for private
nuisance. It noted that “[i]n this state . . . a private nuisance action
cannot be maintained for an interference in the use and enjoyment of
land caused solely by the fear of a future injury.” (Id. at pp. 1041-1042.)
The plaintiffs’ nuisance claim failed in that case because there had been
no actual physical invasion or damage to them or their property. (Id. at
p. 1042.)
28
In contrast, in this case there is an ongoing physical invasion of
Wilson’s property–there is no dispute that there is stray voltage
affecting her entire property. Moreover, there is no dispute that the
stray voltage has, at times, been perceptible, causing a tingling
sensation or a shock. Thus, if a jury concluded that a reasonable person
would fear further encounters with perceptible stray voltage, it could
find that that fear substantially interfered with Wilson’s use and
enjoyment of the property.
A jury also might find other kinds of harm caused by
imperceptible stray voltage, such as limits on what could be done in a
further remodel. As Norwalk counseled Seamons when they met to
discuss the stray voltage at the property, Seamons would need to
consult with Edison before doing renovations that involve plumbing to
discuss what would need to be done to prevent perceptible stray voltage.
In identifying these possible harms, we do not mean to imply that
the invasion Wilson alleges necessarily is substantial and that the harm
she allegedly suffered outweighs the public benefit of Edison’s provision
of electricity. That is for a jury to decide. We simply point them out to
demonstrate that the balancing that Edison contends favors it as a
matter of law is not as simple as Edison makes it out to be. In light of
the evidence presented at trial, we cannot conclude as a matter of law
that Edison is entitled to judgment.
29
C. Admission of Evidence Regarding Prior Owners/Tenants and
Other Properties
As noted, before trial Edison moved to exclude evidence regarding
stray voltage incidents at houses other than Wilson’s house, or incidents
that occurred at Wilson’s house before Wilson bought the property.
Edison argued that this evidence was not relevant to Wilson’s nuisance
claim because “any liability of [Edison] for nuisance must be based upon
an interference with [Wilson’s] use and enjoyment of [Wilson’s] Property
during the time that she owned the property.” The trial court denied
Edison’s motion with respect to incidents at Wilson’s house, finding the
evidence was relevant to show what Edison knew, when it knew it, and
how it responded in the past. 18 On appeal, Edison contends the trial
court erred in admitting this evidence, and that the admission of the
evidence prejudiced Edison. We agree.
1. Most of the Evidence Was Not Relevant to the Nuisance
Claim
“‘No evidence is admissible except relevant evidence.’ (Evid. Code,
§ 350.) ‘“‘Relevant evidence’ means evidence . . . having any tendency in
reason to prove or disprove any disputed fact that is of consequence to
the determination of the action.’ (Evid. Code, § 210.) ‘The test of
relevance is whether the evidence tends “‘logically, naturally, and by
18 Although the trial court granted the motion with regard to incidents
involving properties other than Wilson’s, some evidence nevertheless was
allowed in during trial.
30
reasonable inference’ to establish material facts. . . .”’ [Citation.] A
trial court ‘is vested with wide discretion in determining the relevance
of evidence,’ but it has ‘no discretion to admit irrelevant evidence.’
[Citation.]” (Velasquez v. Centrome, Inc. (2015) 233 Cal. App. 4th 1191,
1211.)
Wilson contends the evidence regarding the history of stray
voltage at her property and other nearby properties is relevant to
(1) notice as it relates to the element of unreasonableness; (2) the
existence of a nuisance; (3) causation; and (4) why Wilson refused to
accept Edison’s offer to install isolators at her showers and gas line.
She misunderstands the elements of a nuisance claim and ignores the
facts of this case.
To prove her nuisance claim, Wilson has to prove (1) Edison’s
conduct caused an interference with her use and enjoyment of the
property; (2) that the interference was substantial, i.e., that it caused
her to suffer substantial actual damage; and (3) that the interference
was unreasonable, i.e., that it was of such a nature, duration, or amount
as to constitute unreasonable interference with her use and enjoyment
of the land. (Covalt, supra, 13 Cal.4th at pp. 937-938.)
Wilson’s first argument–that evidence of other people’s experience
with stray voltage on the property (or other nearby properties) is
relevant to notice as it relates to the element of unreasonableness–is
based upon a faulty reading of the element. Wilson contends that “any
and all evidence probative of the reasonableness of Edison’s conduct is
admissible.” But the issue to be decided in a nuisance case is not the
reasonableness of the defendant’s conduct. A defendant’s conduct may
31
be reasonable but still result in an unreasonable interference with the
plaintiff’s use and enjoyment of her property.19 (Prosser & Keeton,
supra, § 88, p. 629.) In any event, the conduct at issue is the conduct
that causes the interference with Wilson’s use and enjoyment of her
property. Edison’s conduct with regard to prior occupants of the house
has no relevance to this issue.
Wilson’s second argument–that the evidence at issue is relevant to
show the existence of a nuisance–is difficult to decipher. Relying upon
product defect and negligence cases, Wilson appears to argue that
evidence of similar occurrences in the past tend to establish that the
defendant had notice of a defect. She contends that Edison “hotly
contested the existence of a nuisance,” and the challenged evidence had
a tendency to refute that because it showed that Edison had received a
“constant stream of complaints” regarding stray voltage in the
neighborhood but did nothing about it until it was forced to.20 But the
only nuisance whose existence is contested in this case is the private
nuisance Wilson alleged, i.e., that stray voltage caused by Edison
unreasonably interfered with Wilson’s use and enjoyment of her
19 The reasonableness of Edison’s conduct might be relevant to a
negligence claim, but we previously found there was insufficient evidence to
support such a claim against Edison. (Wilson I, supra, 234 Cal.App.4th at p.
140.)
20 We note that this latter argument–that Edison had notice of prior
complaints but did nothing until it was forced to–is not a proper argument on
a nuisance claim. Rather, it is an argument for a negligence claim for which,
as noted, we previously found there was insufficient evidence. (Wilson I,
supra, 234 Cal.App.4th at p. 140.)
32
property. Whether Edison had notice of similar alleged complaints of
stray voltage made at other times or with regard to other places is not
relevant to establish an alleged nuisance in this case.
In Wilson’s third argument, she contends that evidence of similar
conditions in the neighborhood and of similar complaints in the past is
relevant to show that the harm she suffered was from the same cause.
Even if this were true, it ignores the fact that the cause of the
interference with Wilson’s property was not contested in this case.
While Edison may have contested (and continues to contest) that the
interference rises to the level of a nuisance under the law, it has never
contested that the stray voltage at Wilson’s property is caused by its
conduct in transmitting and distributing electricity to the area.
In her final argument, Wilson contends that the challenged
evidence was relevant because her “knowledge of Edison’s treatment of
all the prior occupants of her house regarding stray electricity . . . was a
factor in her refusing to move back into the house based on Edison
saying they would finally fix it . . . –or at least the jury could so find.”
But there is no evidence that this was a factor in her decision not to
move back into the house. Rather, Wilson testified that she refused to
move back into the house because she had signed a one-year lease on a
rental property and because she considered Edison’s proposed fix a
“band-aid” rather than a real solution since it would not completely
eliminate the stray voltage on her property. Moreover, it appears that
Wilson did not have any of the detailed evidence presented at trial
when she made her decision; she testified that Norwalk told Stelle
about the history of stray voltage at the property but did not provide
33
any specifics, and that she asked for more detailed information from
Edison, but never received it.
Although this last argument fails to show that the extensive
evidence of prior stray voltage incidents that was presented at trial was
relevant to Wilson’s nuisance claim, it does suggest that there could be
some relevance to a small subset of that evidence. Evidence of Wilson’s
knowledge of those incidents at the time she filed her lawsuit and
moved out of the house with the intent not to return could be relevant
to the extent that knowledge contributed to any fear of future incidents
she experienced. The rest of the evidence regarding those incidents and
incidents involving other properties, however, was irrelevant, and the
trial court erred by allowing that evidence to be admitted.
2. Admission of the Evidence Prejudiced Edison
Error in the admission of evidence is reversible only if it
prejudiced Edison, i.e., if “there is a ‘reasonabl[e] probab[ility]’ that it
affected the verdict.” (College Hospital Inc. v. Superior Court (1994) 8
Cal. 4th 704, 715.) “A ‘reasonable probability’ in this context ‘does not
mean more likely than not, but merely a reasonable chance, more than
an abstract possibility.’” (Kinsman v. Unocal Corp. (2005) 37 Cal. 4th
659, 682.) We find there is a reasonable chance that a result more
favorable to Edison would have been reached had the challenged
evidence been excluded.
First, the prior history of stray voltage on Wilson’s property was
raised throughout the trial, from Wilson’s opening statement, through
34
several witnesses who testified solely about that history, to closing
argument.
Second, Wilson’s counsel used that evidence extensively in his
closing argument, contending that Edison had acted improperly for
decades and asking the jury to send Edison a message through its
verdict.
Finally, this was a close case. The jury split nine to three on four
key questions. It is reasonably probable that one or more additional
jurors would have found in favor of Edison on those questions in the
absence of the challenged evidence.
Because we find that Edison was prejudiced by the admission of
irrelevant evidence, we reverse the judgment in favor of Wilson and
remand the matter for a retrial on the nuisance claim. On retrial, the
evidence regarding prior stray voltage incidents at Wilson’s property or
neighboring properties is inadmissible except to the extent the evidence
relates to Wilson’s knowledge of those incidents at the time she filed the
lawsuit and moved out of the house with the intent not to return and
that knowledge contributed to the harm she allegedly suffered.
D. Other Issues Raised
In light of our determination that the judgment must be reversed
and the matter remanded for retrial, we need not address the other
issues Edison raises in its appeal. And, because the judgment is
35
reversed, Wilson no longer is the prevailing party. Therefore, her cross-
appeal challenging the denial of her motion for attorney fees is moot. 21
DISPOSITION
The judgment is reversed and the matter is remanded for retrial
on the nuisance cause of action. Wilson’s cross-appeal is dismissed as
moot. Edison shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
COLLINS, J.
21 Edison filed a request for judicial notice relating to the cross-appeal. In
light of our finding that the cross-appeal is moot, we deny that request.
36